Advance Notice of Proposed Rulemaking for internet communication disclaimers (2011)

On October 4, 2011, the Commission approved an Advance Notice of Proposed Rulemaking (ANPRM) concerning disclaimers on certain Internet communications. The Commission requests comments from the public, by November 14, 2011, on whether and how it should modify its rules regarding disclaimers on certain communications appearing on the Internet. The Commission does not anticipate that any final rule would become effective for the 2011-2012 election cycle.

Background

Under the Federal Election Campaign Act (the Act), a disclaimer is a statement that must appear on certain communications in order to identify who paid for the communication and, where applicable, whether the communication was authorized by a candidate. With some exceptions, the Act and Commission regulations require disclaimers to accompany public communications that are made by a political committee, expressly advocate the election or defeat of a clearly identified federal candidate or solicit contributions. 2 U.S.C. § 441d(a); 11 CFR 110.11(a). Political committees must also include a disclaimer in communications sent via email to more than 500 recipients, as well as their Internet websites.

While the term “public communication” does not usually include Internet communications, it does encompass communications placed for a fee on another person’s website. 11 CFR 100.26. Therefore, such communications are subject to disclaimer requirements as well.

For those communications requiring disclaimers, each disclaimer “must be presented in a clear and conspicuous manner, to give the reader, observer or, listener adequate notice of the identity” of the communication’s sponsor. 11 CFR 110.11(c)(1).

Certain communications are exempt from these general disclaimer requirements, such as bumper stickers, pins, buttons, pens and other small items upon which a disclaimer cannot be conveniently printed, known as the “small items exception.” Disclaimers are not required for other communications such as skywriting, water towers, apparel or other communications of such a nature where inclusion of a disclaimer would be impracticable, known as the “impracticable exception.”

Recent developments concerning Internet ads

The Commission recently considered two advisory opinion requests that sought to exempt certain Internet ads from the disclaimer requirements under the small items or impracticable exceptions. First, Google, Inc. asked the Commission if it could sell text ads consisting of approximately 95 characters to candidates and other political committees without disclaimers. Google proposed that viewers could click on the ad and be directed to a disclaimer on the ad’s landing page. The Commission found that such ads would not violate the Act, but did not agree on the reason for its decision. AO 2010-19 (Google).

In another advisory opinion request, Facebook asked if its small, character-limited ads qualified for the small items or impracticable exceptions to the disclaimer requirements. The Commission could not approve an advisory opinion by the required four affirmative votes, and therefore could not provide an answer to Facebook.

Comments

The Commission seeks comments that address the ways that campaigns, political committees, voters and others are using, or may begin to use, the Internet and other technologies to disseminate and receive campaign and other election-related material. The Commission is interested in comments that address possible modifications of the disclaimer requirements, including technological alternatives. The ANPRM references the California Fair Political Practices Commission’s recent amendments to its regulations regarding disclaimers on electronic media advertisements, which allowed limited size ads to provide a disclaimer via a rollover display, link, or other technological means and asks whether the Commission should consider similar abbreviated disclosure. The Commission welcomes comments on any aspect of the issues addressed in the ANPRM. Given the fast rate of technological development, the Commission also seeks comments that address possible regulatory approaches that could minimize the need for serial revisions of Commission regulations.

All comments must be received in writing on or before November 14, 2011. Comments may be submitted electronically via the Commission’s website at http://sers.fec.gov/fosers/. The public is encouraged to submit comments electronically to ensure timely receipt and consideration. Alternatively, paper comments may be submitted to Federal Election Commission, Attn: Amy Rothstein, Assistant General Counsel, 999 E Street, NW, Washington, DC, 20463. In order to be considered, all comments must include the full name and postal address of the commenter. The Commission will post the comments on its website at the conclusion of the comment period.

The full text of the ANPRM is available at http://sers.fec.gov/fosers/showpdf.htm?docid=353587.